Papers on Appeal from Interlocutory Judgment Overruling Demurrer

Papers on Appeal from Interlocutory Judgment Overruling Demurrer

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1902 edition. Excerpt: ...(P. P., fol. 12). They are all necessary and material defendants (P. P., fol. 11); there could be no complete determination of the action without the presence of all of the defendants (P. P., fols. 11 and 12). Therefore, clearly under the following oases, more especially the case of Ward v. Dewey, quoted below, the case was ineffectually on. the calendar and the Court erred in making the order appealed from. Ward v. Dewey, 12 How. Pr., 193. Morris v. Crawford, 16 Abb. Pr. Hep., 124. In the case of Ward v. Dewey supra), at page 195: "Where the cause has not been noticed for trial by the plaintiff, and but one of several defendants who has appeared and answered has noticed it, no effectual trial can he had. Of course, the plaintiff cannot be forced to trial in such a case." So that, it appears apparent from this case that the rights of the plaintiff and defendant to move for trial are mutual. Either the plaintiff must move as against all of the defendants, or all of the defendants must move as against the plaintiff, and no one of many defendants can move asagainst the plaintiff. The note of issue filed, pursuant to which the case appeared on the calendar, distinctly states that it is the defendant Ilutkoff's note of issue (P. P., fols. 41 and 42). Reference may be made by my learned adversaries to Section 980 of the Code of Civil Procedure, which provides, "Either party who served the notice may bring the issue to trial." What is meant by '.either party," was construed in the Ward v. Dewey case (supra), page li)o, the Court said: "When it is said that 'rilhvr parti/' may give notice of trial, it is intended that the notice which shall give the right to bring on the trial of the action must be given by one or...show more

Product details

  • Paperback | 322 pages
  • 189 x 246 x 17mm | 576g
  • Rarebooksclub.com
  • United States
  • English
  • black & white illustrations
  • 1236803000
  • 9781236803009